Elder Law and Conservatorship

When a parent becomes mentally impaired, it is only a matter of time before they need help taking care of their own personal and financial affairs. Some of the common signs of diminished capacity are disorientation and memory loss. When you see these signs, it may be time to consider taking steps to provide necessary care. It would be best however to make plans ahead of time. Whichever course you take, there will be many difficult issues ahead, but your elder law attorney can help.

Formal control may sometimes be necessary

Many families find that they can take care of their loved ones themselves without any type of formal arrangement. However, depending on the situation, more official control or management is required in order to have legal access your parent’s finances. Also, having a formal arrangement can be useful in preventing exploitation. For different reasons, a conservatorship may be necessary. Conservatorships are not the simplest or least expensive solutions, though, so be sure to discuss possible alternatives with your California elder law attorney.

Understanding how a conservatorship works

A conservatorship is the process in which someone is appointed to manage the personal affairs of someone else, after that person has been determined to be incapacitated. Conservatorships need to be established through a court proceeding. Due to the serious consequences of being determined by a court of law to be incapacitated, as well as the resulting loss of individual rights, in many cases conservatorships should be the “last resort.” Put another way, conservatorships should not be established merely because your loved one makes some decisions with which you do not agree. Nor should a conservatorship be considered based solely on a disability or medical diagnosis.

A power of attorney might be a better option

The best way to avoid the need for a conservatorship is to execute a durable power of attorney for healthcare and finances while your loved one is still legally competent to do so. A power of attorney is not as complicated as a conservatorship and usually much less expensive. The most important advantage of a durable power of attorney is that the agent can be chosen by the individual as opposed to being left for the court to decide. Unlike a conservatorship, the selected agent will have the power to take over your loved one’s affairs without the supervision or approval of the court. But remember, the durable power of attorney must be executed in advance of one’s incapacity. Otherwise, a conservatorship may be the only recourse available.

Other elder law alternatives to a California conservatorship

Some other alternatives to conservatorship might include revocable living trusts, protective orders, advance directives for health care and joint bank accounts. However, like the durable power of attorney, these legal documents must be executed in advance of one’s incapacity. In California, you can also consider a limited conservatorship. A limited conservatorship is an option for adults with developmental disabilities who only need limited assistance caring for themselves or taking care of their finances.

Starting the incapacity planning conversation with your parents

The first step you should take, before actually starting the conversation, is to talk to all involved family members to make sure you are all on the same page. Resolve any misunderstandings or disputes ahead of time so that you can approach your parents with a united front. Doing so should reduce the risk of putting your parent on the defensive. This doesn’t mean the entire family needs to be in on the conversation.

The planning is much easier if your parent still has some decision-making capacity. In that case, the next step is talking with an elder law attorney to discuss the elements of the estate or incapacity plan that need to be included. When there are several siblings, for the purposes of transparency, it is best to have all of the children participating in the discussions if at all possible.

An elder law attorney can provide the help and support you need

An elder law attorney typically handles issues regarding the elderly. These types of issues generally relate to nursing home care, estate planning, and conservatorships, for example. Elder law attorneys receive specific training and experience in the applicable legal issues affecting seniors. This makes elder law attorneys better equipped to understand and meet the needs of their elder clients and their families. Elder law attorneys are also very skilled at anticipating potential legal issues facing seniors. All in all, the practice of elder law involves legal advocacy, education, counseling and future planning.

If you have questions regarding alternatives to conservatorships or any other elder law needs, contact the Northern California Center for Estate Planning and Elder Law for a consultation, either online or by calling us at (916) 437-3500.

Timothy P. Murphy is an estate planning and elder law attorney whose practice emphasizes helping people to build, preserve and pass on their wealth. He works with his clients to accomplish their goals while avoiding unnecessary court proceedings and minimizing or eliminating exposure to death taxes.

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